Citation Nr: 9936031
Decision Date: 12/29/99 Archive Date: 01/04/00
DOCKET NO. 98-19 880 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to an increased evaluation for service-connected
hemorrhoids, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
REMAND
The appellant had active military service from July 1961 to
September 1963. This matter comes before the Board of
Veterans' Appeals (Board) on appeal from a February 1998
rating decision of the Department of Veterans Affairs (VA)
regional office (RO) in Montgomery, Alabama.
In a January 1995 statement, the appellant indicated that he
had ongoing treatment for hemorrhoids from two VA medical
centers (MC). The RO requested the appellant's treatment
records from Houston VAMC, but not from the Montgomery VAMC.
The appellant has submitted a November 1996 colon barium
enema report from Montgomery VAMC, indicating the likelihood
that there are other treatment records from Montgomery VAMC
that have not yet been associated with the file. The
Secretary is held to have constructive knowledge of VA
medical records, particularly where the Board is on notice of
the possible existence and relevance of the records. See
Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the
RO should take appropriate steps to be sure that the
appellant's complete VA treatment records from Montgomery
VAMC, from 1994 to the present, are associated with the
claims file.
Furthermore, the appellant has provided a copy of a Social
Security disability determination indicating that he has been
determined eligible for a period of disability, based in part
upon his hemorrhoid condition. The medical records that were
considered in connection with this decision have not been
requested from Social Security Administration, and they
should be requested and made part of the file.
Accordingly, while the Board regrets the delay, this case is
remanded for the following:
1. Request the appellant's complete
treatment records, including laboratory
and diagnostic studies, and all inpatient
and outpatient treatment records, from
1994 to the present, from the Montgomery
VAMC. Associate all records received
with the claims file.
2. Contact the Social Security
Administration and request the complete
records relating to the appellant's award
of Social Security disability benefits,
to include all medical evidence and
adjudicative actions. The request should
include citation to appropriate legal
authority requiring that any Federal
agency provide such information as may be
requested for purposes of determining
eligibility for or amount of benefits.
38 U.S.C.A. § 5106 (West 1991).
Associate all information received with
the claims folder.
3. Readjudicate the appellant's claim,
and, if the determination remains
adverse, provide him and his
representative a supplemental statement
of the case, affording an appropriate
period for response.
Thereafter, return the claims folder to the Board, if
appropriate, according to applicable appellate procedure.
The appellant need take no action unless requested. The
appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).